Article 127 cannot be invoked says the verdict

Kathmandu Feb 14-While delivering the verdict, the bench has also addressed three other major constitutional issues source of state power, use of Article 127 of the constitution, and whether the king's actions can be questioned in a court of law.

The Nepali people are the source of state power as per the Constitution of the Kingdom of Nepal, 1990. The verdict said it is irrelevant to argue about the provisions of earlier constitutions on the use of state power after the promulgation of the 1990 constitution. The lawyers defending the constitutionality of the RCCC had pleaded before the court that state power rested in the king as per the constitution of 1962.

"The violation of the constitution regarding the source of state power creates constitutional problems and it is in the interest of the state to avoid such a situation," the court said.
Replying to a major argument raised by lawyers in defense of the RCCC, the court said that even the king's actions can be challenged in a court of law if those actions are taken on his own discretion and raise serious constitutional questions. The court, however, said that any actions taken by the king as per the advice of and in consultations with the cabinet cannot be questioned in court.

Referring to a 1994 precedent, the court said that the king can use the Article only if any difficulty arises in connection with the implementation of the constitution. "It is not wise to use the Article on a false premise of such difficulties in connection with the implementation of the constitution." The verdict also said Article 127 cannot be invoked to curtail citizen's rights guaranteed by the constitution.

The RCCC, since its inception, was marred by controversy as its constitutionality was questioned at the national and international levels. As it targeted some opposition leaders, including former prime minister Sher Bahadur Deuba, former minister Prakash Man Singh and bureaucrats, it was seen as a means to settle scores. Deuba and Singh were jailed as per a "verdict" of the RCCC.

In the beginning, the Supreme Court administration had rejected the petition filed by advocate Mahato. But Justice Rayamajhi ordered the administration to accept it, saying it raised "serious constitutional questions".

Even after the order, some judges were reluctant to take up the case and the initial hearing was deferred as many as 19 times. It was again Justice Rayamajhi who dared to issue a show cause notice to the RCCC and the government over the case.